THIS AMENDMENT (the “Amendment”) is made
as of January 7, 2004, by and among AEROGEN, INC., a Delaware corporation (the
CAPITAL PARTNERS, LTD., or its registered assigns(the
“Holder”). Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Debenture (as defined
the Borrower issued a Secured Convertible Debenture dated September 9,
2003 and initially due December 31, 2003 (the “Debenture”) to the Holder pursuant to that certain Loan and
Securities Purchase Agreement, dated as of September 9, 2003 (the “Purchase Agreement”);
the Borrower and the Holder desire to amend the Debenture to extend the
maturity date to January 15, 2004;
THEREFORE, the Borrower and the Holder agree that the
Debenture and the Purchase Agreement are amended as follows:
Maturity Date of the Debenture is amended from December 31, 2003 to
January 15, 2004.
reference to December 31, 2003 in the definition of Debenture in
Section 1.1 of the Purchase Agreement shall now be January 15, 2004.
waives any default or breach by Borrower of the Debenture, Purchase Agreement
or related agreements for failure to repay the Debenture prior to this
on the Debenture will continue to accrue through January 15, 2004.
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
IN WITNESS WHEREOF,the parties hereto have executed this AMENDMENT
as of the date set forth in the first paragraph hereof.